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«£ 


REPORT  OF  CERTAIN  MEMBERS 


OF  \'HE 


COMMISSION'  ON  .TrmiHl].!^  CODE 


OF   THE 


STATUTE;  LAW  OF  SOUTH  CAROLINA, 


PREPARED   BY   THE   LATE 


JAMES  LOUIS   PETIGRU,  COMMISSIONER. 


COLUMBIA,  S.  C: 

STEAM  POWER-PRESS  OF^".  G.  DeFONTAIXE  A  CO. 

1864. 


REPORT 

OF  CERTAIN  MEMBERS  OF  THE  COMMISSION  ON  PETIGRU'S 
CODE  OF  THE  STATUTE  LAW  OP  SOUTH  CAROLINA,  PRE- 
PAR'ED  by  THE  LATE  JAMES  LOUIS  PETIGRU,  COMMIS- 
SIONER. 


The  undersigned  respectfully  dissent  from  the  Report  of  the  *Majoritjr  of 
the  Commission,  and  submit  the  following  Report : 

In  the  year  1859,  an  Act  was  passed  providing  for  a  Code  of  the  Statute 
Law  of  the  State,  entrusting  the  work  to  a  single  Commissioner,  with  the  aid. 
of  assistants  of  his  own  selection,  and  attaching  a  higher  salary  to  the  oflBce 
than  that  received  by  any  other  State  officer.  These  and  other  provisions  of 
the  law,  as  well  as  the  importance  and  difficulty  of  the  work,  indicate  that  a 
person  of  extraoraiaary  capabilities  was  contemplated  for,  the  placfe  of  Com- 
missioner. The  choice  of  the  Legislature  fell  on  Mr.  Petigru,  of  whose 
eminent  talents,  reputation  as  a  jurist,  rare  scholarsihip,  general  learning,, 
high  character,  and  indomitable  industry,  it  is  needless  to  speak. 

The  Act  placed  no  restriction  as  to  time  on  the  work,  but  provided  for  au 
annual  report  of  its  progress,  and  the  annual  election  of  the  Commissioner. 

At  the  session  of  December,  1860^  the  Commissioner  made  his  first  Report, 
accompanied  by  a  printed  volume  of  270  pages,  containing  "a  Redaction  of 
the  Statute  Law,  under  the  heads  of  Territorial  Rights,  and  Political  and 
Civil  Divisions,  as  far  as  Courts  of  Common  Pleas  and  General  Sessions,  in- 
clusive," and  disclosing  fully  his  plan,  as  "  borrowed  from  Blackstonc's 
Commentaries." 

This  Report  was  referred  to  the  Committee  xtxi  the  Judiciary  of  each 
Branch  of  the  Legislature,  neither  of  which  Committees  expressed  a  word 
of  disapproval  of  the  plan  of  the  work  or  the  manner  of  its  execution.  And 
Mr.  Petigru  was  re  elected  Commissioner. 

With  this  implied  sanction  of  his  plan,  the  Commissioner  devoted  himself 
with  renewed  energy  to  the  prosecution  of  the  work,  and  in  December,  1861, 
submitted  his  second  Report,  and  a  second  printed  volume,  both  of  which 
were  referred  to  the  same  Committees,  with  the  same  result. 

^ ^ 4 

*  The  Commission  consists  of  seven  members.  Only  five  attended  the  meetin<Tg. 
Three  of  them  unite  in  the  iteport  here  called  the  Report  of  the  Majority.  They  con- 
stitute a  majority  of  those  present,  but  not  of  the  entire  Commission.        ' 


Mr.  Petigru  was  continued  as  Commissioner,  and  in  December,  1862, 
made  his  third  Report,  accompanied  by  a, printed  leolume  completing  the 
work — in  which  he  remarks  that  "some  errors  have  probably  escaped  him, 
for  even  in  Dr.  Cooper's  compilation  [of  the  Statutes  at  Large  of  the  State] 
omissions  and  mistakes  have  been  detected,  which  are  much  more  likely  to 
occur  in  a  Digest  involving  the  exercise  of  selection  than  in  a  mere  compila- 
tion. Many  such  errors  have,  been  corrected  in  the  progress  of  the  work, 
and  form  the  subject  of  an  Apperfdix.  No  inconsiderable  share  of  that  part 
of  the  present  number  is  occasioned  by  contemporary  legislation,  and  he  (thtf 
Commissioner)  is  somewhat  consoled  for  the  bulk  of  this  part  of  his  work, 
[filling  2G  pages,]  by  the  consideration  that  the  Corrigenda  &  Addenda 
to  Chitty  and  Beavan's  Statutes  of  Practical  Utility  occupy  one  hundred  and 
twenty  pages  of  their  last  volume.  With  a  grateful  sense  of  the  confidence 
of  the  Legislature,  and  an  earnest  desire  that  his  work  may^be  found  worthy 
'of  their  approval,  it  is  submitted  to  their  judgment." 

The  entire  wo|j£  was  then  referred  to  a  Commission  of  seven  persons, 
composed  of  members  of  the  Judiciary  Committees  of  the  two  Houses,  who, 
with  one  or  two  exceptions,  had  been  members  of  those  Committees  from  the 
time  the,  Commissioner  received  his  first  appointment.  The  Commit^sion 
were  to  "  examine  and  report  on  the  icork"  at  the  next  session,  and  the  time 
■  was  afterwards  extended  to  the  present  Session. 

Mr.  Petigru  was  justly  anxious  to  appear  before  the  Commission.  For 
more  tiian  two  years,  disease,  in  no  degree  dimming  his  bright  intellect  or 
hindering  his  great  energy,  had  been  making  steady  inrpads  on  his  bodily 
frame,  and  death,  now  palpably  before  him,  was  the  subject  of  calm  contem- 
plation. There  was  no  record  of  his  unsurpassed  forensic  efforts.  This 
work  was  to  be  his  monument,  as  well  as  a  legacy  to  his  native  State,  which 
he  loved  with  a  devotedness  that  no  differences  of  opinion,  and  no  outside 
attractions  or  enticements  could  extinguish  or  diminish.  There  might  be 
apparent  imperfections  in  it,  which  he  could  explain.  One  opportunity,  and 
another,  was  cheerfully  accorded  to  him.  But  it  was  too  late-,  and  his  earthly 
career  of  gr^at  usefulness,  and  of  priceless  example  to  his  young  countrymen, 
was  terminated  in  March,  1863. 

This  statement  is  necessary  to  the  consideration  of  the  first  subject  which 
will  be  noticed  in  the  Report  of  the  Majority.  It  is  that  which  recom- 
mends that  the  plan  of  the  work  be  entirely  changed,  and  another  substituted 
in  its  place. 

Without  discussing  the  merits  of  the  plan  proposed,  whicli  is  unscien-tific 
and  comparatively  easy  of  accomplishment,  it  is  respectfully  submitted  that 
the  substitution  of  it  would  involve  injustice  to  the  memovy  of  the  Commis- 
sioner, if  not  a  breach  of  good  faith,  unless  it  be  demonstrated  that  his  plan 
is  clearly  defective  and  insufficient  for  the  object  designed  by  the  Legisla- 


u 


ture.  The  worli:  would  cease  to  be  his,  and  become  that  of  the  Majority  of 
the  Coinmigsion — by  the  appropriation  o£  his  faithful  labor,  searching  analy- 
sis, and  tasteful  condensation.  His  plan  was  set  forth  at  the  outset,  and  its 
examination  solicited  ;  and  he  was  permitted  to  continue  the  work  to  its 
ooiiiplction,  according  to  that  plan,  without  criticism  or  objection,  although 
the  ^ct  of  1859,  provides  that  "  such  action  as  shall  seem  proper  to  the 
Legislature  may. be  taken"  upon  the  portions  of  the  work  pri.pared  and  an- 
nually reported,  "according  to  the  plan  and  method'  adopted  by  him." 

But  the  plan  is,  in  truth,  an  excellent  one,  and  peculiarly  appropriate. 
The  Act  provides  for  the  preparation  of  "such  a  code. of  Statute  Law  as,  if 
enacted,  might,  in  connection  with  the  portions  of  the  Common  Law  that 
would  be  left  unaltered,  constitute  the  whole  body  of  law  in  this  State."  It 
was  thus  made  the  office  of  the  Commissioner,  to  interweave  his  work  with 
the  Common  Law.  But  what  more  approved  trea'iseof  the  Common  Law  is 
there»than  Biackstone's  Commentaries?  What  arrangement  of  its  topics  so 
'familiar  to  the  Legal  Profession,  and  even  to  lay- men,  as  his,  which  the 
Commissioner  "borrowed"  as  jie  modestly,  remarks?  During  the  delibera- 
tions of  the  Commission,  it  was  objected  that  the  plan  is  too  scientific  for 
ordinary  minds.  Without  at  all  conceding  this  to  bo  so,  the  Commissioner 
doubtless  believed,  and  properly,  that  his  appointment  called  for  a  work  of 
the  highest  scieutitic  character — not  a  popuhir  one.  But  whatever  be  the 
arrangement  of  such  a  work,  a  general  index  is  a  necessary  and  easy  guide 
to  its  contents,  and  the  same  index  would  serve  under  the  plan  pursued  by 
the  Commissioner,  and  that  proposed  by  the  Commi.ssion.  The  important 
point  is,  that  it  contain  all  the  law,  and  that  it  does  contain  all,  except  what 
is  set  forth  in  the  Report  of  the  Majority  as  omissions  detected  by  them,  is 
implied  in  the  fact  that  their  Book  is  to  be  compo.sed  of  the  matter  in  the 
Commissioner's,  "as  altered  and  amended"  by  them. 

The  undersigned  make  no  objection  to  the  recommendation  of  the  Majority; 
that  certain  topics  in  the  Code  shall  form  a  separate  volume,  and  concur 
with  them  in  the  necessity  of  appointing  an  Editor — not,  however,  to  re- 
arrange the  work — but  to  ijoUate  the  several  parts  as  they  may  be  amended 
hy  the  Le<jfi'i'a(ure,  and  "prepare  a  complete  general  index  of  the  whole." 
In  the  language  of  the  late  Commissioner — "The  work  cannot  bo  comn)itted 
to  the  press  until  it  has  received  your  sanction  ;  and  the  finishing  hand  of 
an  Editor  will  be  needed  to  incorporate  the  additions  and  corrections  in  the 
body  of  the  work,  to  number  the  sections  and  paragraphs  for  the  purpose  of 
reference,  and  reduce  the  several  indexes  to  one  table  of  contents." 

These  preliminary  matters  being  disposed  of,  the  undersigned  approach, 
the  heavy  task  of  considering  the  voluminous  "  alterations  ami  amendments" 
recommeude  1  by  the  Majority.     Aud,  at  the  out.set,  thoy  protest  against  those 
which  imply  that  the  Commiision  was  invested  with  power  to  introduce  new 


law — a  power  which  it  will  be  se^n  has  been  lavishly  exercised  by  the  Ma- 
jority, This  delicate- power,  involving  the  highest  confidence,  was  entrusted  « 
to  the  Commissioner,  who,  as  before  remarked,  was  to  be  a  person  of  extra- 
ordinary capabilities.  It  was  done  very  cautiously,  too.  He  was  admonished,  ^ 
that  "  adherence  to  what  is  established,  where  the  reasons  for  change  are  not 
decisive,  should  be  a  governing  principle;  but,  al  his  dhcreiiun,  regulatfd 
by  this  principle,"  (and  others  laid  down  in  the  Act)  "repeals  and  altera-  j 
tions  of  existing  law,  acd  additions  to  it,  might  be  introduced."  The  Act 
also  contemplated  that  such  repeals,  alterations  and  additions,  as  he  might 
suggest,  should  be  first  scrutinised  by  eomniittecs,  according  to  the  rules  of 
thd  Legislatujc',  before  being  acted  on  by  that  body.  The  "  Reports  of  the 
Commissioner,"  (Rrj^or/s  on  J  Resolutions  of  \%Q2,  p.  173,)  not  the  prepara-  ' 
tion  of  a  Code  of  its  own,  was  referred  to  the  Conimisbion.  And  it  is 
respectfully  submitted  that  the  true  office  of  the  Commis^sion  was  to  examine 
the  Commiss. oner's  work,  and  report  whether  in  its  judgment  his  digest  of 
the  old  law  retained  ..is  correct,  and  his  modifications  and  repeals  of  it,  and 
suggestions  of  new  law  are  judicious.  Such  is  the  plain  import  of  the  Reso- 
tion  of  reference.  And  to  suppose  that  it  conferred  the  power  which  has 
been  assumed,  would  be  to  suppose  that  the  Lcgislatiire  intended  new  law 
introduced  by  the  Commii-sion,  (in'whose  abilities  it^  cannot  be  imagined 
that  higher  confidence  was  reposed  than  in  the  Commissioner's,)  to  be -acted 
on  by  them  immediately,  without  the  previous  scrutiny  to  which  his  sugge.*^- 
tions  were  to  be  subjected. 

The  alterations  and  amendments,  then,  may  be  classified,  as  follows : 

I.  Those  wiich  contain  modifications  of  the  statutes— substantial  additions 
thereto — (iiew  law') — or  repeals  of  substantial  parts  thereof,  which  the  Com- 
missioner, in  the  discretiou  vested  in  him,  did  not  think  fit  to  recommend. 

II.  Those  which  restore  statutory  enactment.-^,  which  the  Commissioner 
has  wisely  recommended  to  be  reftealed  or  modified. 

III.  Those  which  reject  new  law,  wisely  recommended  by  the  Commis- 
sioner. 

IV.  Those  which  mar  the  tasteful  style  and  condensation  of  the  work,  by 
restoring  the  words  of  the  statute",  or  otherwise  changing  those  of  the 
author. 

V.  Those  consisting  of  matter,  which  is,  in  fact,  already  m  the  Book,  or 
Was  noted  by  the  Commissioner,  and  omitted  in  the  Addenda  <&  Corrigenda. 

VI  Those  that^oint  out  omissions  of  words  or  matter  which,  in  the  judg- 
ment of  the  undersigned,  should  be  retained— or  changes  that  are  rendered 
necessary  Ly  recent  legislation. 

To  notice  all  would  swell  this  Report  into  a  volume.  The  undersigned 
will   therefore  confine  themselves  to  a  few  in  each  class,  and  simply  point 


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out  the  rest,  and  invite  the  examination  of  them  by  members  for  them- 
selves :  * 

I.  On  page  31,*  paragraph  3,  the  duties  of  Constables  are  set  forth  in  the 
execution  of  orders,  &c;.,  "■'relating  to  the  trial  of  slaves."  The  Majority 
have  added,  after  "slaves,"  "and  persons  of  color."  These  words  are  not 
ii>>the  statute,  and  are  therefore  liable  to  the  objection  of  being  new  law 
introduced  by  the  Commission.'  Moreover  it  is  submitted  that  they  are  un- 
called for,  as  the  effect  would  be  the  same  without  them. 

In  the  fourth  paragraph  on  the  same  page,  the  power  of  a  constable  in 
doing  execution  on  a  slave  or  free  negro  is  stated.  The  word  "Sheriff-" 
instead  of  "Constable"  is  inserted  by  the  Majority.  This  mars  the  sym- 
metry and  propriety  of'.the  existing  law,  the  Constable,  not  the  Sheriff, 
.  being  the  executive  officer  of  the  Justice's  Court. 

On  page  32,  paragraph  4,  the  Code  states  the  reward  provided  by  the 
existing  law  to  persons  who  may  be  maimed  in  apprehending  a  runaway,  or 
slave  who  is  a  fugitive  from  justice.  The  Majority  have  interpolated  or 
"  slave  charged  with  any  criminal  offence,"  and  struck  out  "  or  slave 
who  is  a  fugitive  from  justice."  An(!  in  the  same  paragraph  they  have 
substituted  "distributees"  for  the  word  "heirs,"  which  is  used  in  the 
Statute,  and  followed  ia  the  Code. 

On  page  34,  paragraph  3,  the  Code  states,  in  accordanca  with  the  Statute, 
ihat  a  fine  may  be  substituted  for  corporal  punishment  on  the  conviction  of 
a  free  person  of  cjlor.  The  majority  add  "In  ca.«e3  not  capital,"  new  law, 
and  unnecessary,^cause  death,  not  corporal  punishment,  is  the  penalty  in 
capital  cases. 

On  page  76,  paragraph  6,  the  Code  gives  the  Constilutional  provision  that 
the  Governor  shall  not  be  re-eligible  until  after  four  years,  and  the  Majority 
strike  it  out,  thereby  altering  the  Constitution  ! 

On  page  35,  paragraph  4,  the  allowance  of  half  the  fine  for  trafficking 
with  slaves,  made  to  the  informer  by  the  existing  law,  is  struck  out  by  the 
majority,  and  struck  out  in  like  manner  in  almost  every  ease  in  the  Statutes 
where  such  allowance  occurs.  And  in  paragraph  6  of  same  page,  the 
allowance  of  damages  to  the  owner,  for  the  unlawful  beating  or  imprisonment 
of  his  slave,  is   struck  out. 

On  page  106,  paragraph  7,  the  Code  follows  the  Statute  as  to  the  penalty 
of  the  Bond  of  the  Tax  Collector  for  St.  Philip's  and  St.  Michael's  Parishes, 
which  was  established  as  lately  as  1859.  The  Majority  change  it.  So  on 
page  117,  paragraph  4,  ab  to  election  day  in  Pickens  Disjtrict,  established  by 
Act  of  1859.    ' 

•When  only  the  latter  part  of  a  paragraph  is  printed  on  any  given  page,  it  is  desig- 
Q&ted  as  paragraph  I.  in  these  references.  «   • 


.8 

On  page  304,  the  Majority  propose  to  interpolate  new  law  of  a  very  impor- 
tant character,  by  making  it  penal  for  Railroad  Companies  to  fail  to  furnish 
every  passenger  who  purchases  a  ticket,  with  a  comfortable  seat  throughout 
the  entire  journey  for  which  it  calls,  or  a  supply  of  good  drinking  water  for 
passengers,  or  to  keep  cars  occupied  by  passengers  well  lighted  at  night,  and 
subjecting  them  to  a  fine  of  $1,000  for  every  ofifence. 

Other  amendments  belonging  to  this  class,  occur  at  pages  26,  par.  1;  28^ 
par.  1 ;  32,  par.  2  and  3 ;  cS,  par.  8 ;  35,  par.  2,  3  and  6 ;  36,  par.  4 ;  38, 
par.  1;  39,  par.  3;  40,  par,  2;  44,  par.  4j  45,  par.  5;  47,  par.  1;  48, 
par.  2;  55,  par.  3;  56,  ppr.  5  and  6;  61,  par.  3;  63,  pai'.  3;  74,  pfir.  6j 
78,  par.  10 ;  80,  par.  4,  5  aiid  7  ;  82,  par.  o  and  5  ;  94,  par.  3  ;  99,  par. 
2  ;  102,  par.  6;  103,  par.'  1 ;  106,  par.  '6  and  5;  115,  par.  4;  116,  par. 
2  and  3  ;  117,  par.  4;  123,  par.  3  ;  124,  par.  4;  127,  par.  1. 

II.  On  page  33,  paragraph  9,  as  to  the  trial  of  slaves. and  free  persons  of 
color.  According  to  the  existing  law,  the  consent  of  the  Magistrate  (Jus- 
tice) is  required  when  only  a  majority  of  the  freeholders  agree,  not  when 
they  are  unanimous.  The  Code  modifies  the  law  by  making  the  concurrence 
of  the  Justice  necessary  ia  both  cases.  The  Majority  restore  the  provision 
of  the  Statute.     It  is  submitted  that  the  modification  in  the  Code  is  proper. 

Page  39,  paragraph  4.  The  law  against  the  intrusion  of  free  negroes  into 
the  State.  The  Majority  restore  the  statutory  exception  in  favor  of  "  Free 
American  Indians,  free  Moors  or  Lascars". — properly  omitted  in  the  Code, 
because  those  persons  are  not  embraced  "'n  the  prohibition  and  penalties  of  the 
Statute.  ^ 

On  page  59,  paragraph  5.     OflSce  to  be  regarded  as  vacant  whtfn    the 
'oflScer  fails  to  furnish  additional  security  required.      The  Majority  restore 
the  words  of  the  Statute,  "the  original  bond  not  to  be  cancelled,  or  at  all 
impaired  thereby" — properly  omitted  in  the  Code,  because  entirely  unneces- 
sary.    The  requirement  contemplates  additional,  not  substituted  security. 

The  same  remarks  apply  to  page  60,  paragraph  1. 

On  page  98,  paragraph  6.  One  hundred  copies  of  the  Act  and  Resolu- 
tions of  the  Greueral  Assembly, to  be  subject  to  the  order  of  the  Governor. 
The  Majority  add  the  words  of  the  Statute,  "for  interchange  with  other 
States."  The  Code  properly  leaves  out  the  restriction  as  to  the  purpose  for 
which  they  are  to  be  used,  because  there  were  only  thirty-one  other  States 
when  the  law  was  passed,  and  less  than  one-third  of  that  number  now 

On  page  104,  paragraph  1.  Persons  removing  from  the  State  without 
paying  their  taxes,  although  not  yet  payable,  to  be  dealt  with  as  defaulters. 
Tho  Majority  restore  a  proviso  of  the  Statute  excepting  those  who  give  secu- 
rity for  payment  at  the  appropriate  time — a  cumbrous  provision  very  properly 
left  out  of  the  Code.  It  is  only  reasonable  to  require  such  persons  to  leave 
the  money  'with  an  agent. 


Other  amendment^  belonging  to  this  class  occur  at  pages  34.  paragraph 
.4;  40,  par.  5;  95,  par.  2;  126,  par.  3. 

III.  On  page  47,  paragraph  1.  Privilege  from  arrest  in  going  to  elections. 
The  Code  supplies  a  palpable  defect  in  the  law  by  providing  for  the  prompt 
discharge  of  persons  illegally  arrested,  without  which  the  law  is  nugatory, 
and  gives  the  power  of  discharge  to  the  managers,  the  Majority  annul  the 
amendnjent,  and  leave  the  law  as  it  is.- 

On  page  93,  paragraph  6.  Penalty  against  Tax  Collectors  restricted  by 
the  Statute  to  the  offence  of  failing  to  make  returns.  The  Code  extends  it 
to  the  offence  of  not  paying  over  moneys  collected  according  to  law.  The 
Majority  annul  the  amendment. 

On  page  121,  paragraph  7.  The  Code  provides,  as  new  law,  for  surveys 
of  lands  adcording  to  old  lines  and  actual  possession,  which  shall  be  prima 
facie  evidence  of  the  right  of  possession.  It  is  carefully  guarded,  calculated 
to  prevent  litigation,  and  if  litigation  ensue,  to  simplify  the  proceedings, 
present  the  real  questions  between  the  parties,  and  ensure  justice.  The 
Majority  disapprove. 

On  page'lol,  paragraph  2.  The  Majority  restore  the  provision  of  the 
existing  law,  empowering  a  Justice  to  hear  and  decide  appHcations  for  the 
benefit  ef  the  Prison  Board-  Acts,  which  is  left  out  in  the  Code.  Difficult 
questions  often  occur  under  these  applications,  which  are  beyond  the  capacity 
or  learning  of  the  general  run  of  Justices.  It  is  sufficient  that- the  Clerks 
of  Court  possess  the  power. 

And  on  the  same  page,  paragraph  4,  the  Code  re.ctricts  the  appointment 
of  Constables  to  one  by  each  Justice,  according  to  the  Statute,  but  omits  the 
proviso  as  to  his  appointment  of  Special  (Constables  for  particular  occasions. 
The  Majority  restore  the  proviso.  If  there  be  good  reasons  for  the  general 
rule,  the  proviso  is  so  loose  as  to  render  it  nugatory. 

Other  amendments  belonging  to  this  class  occur  at  pnges  33,  paragraph  9  ; 
36,  par.  4  ;  39,  par.  4  ;  40,  par.  5  ;  44,  par.  4  ;  45,  par.  5  ;  >59,  par.  5  ;  61, 
par.  1 ;  95,  par.  2  ;  98,  par.  6  ;  111,  par.  2  and'3j  119,  par.  6;  123,  par. 
2  ;  124,  par.  4;   125,    par.  3  ;  127,  par.  3  and  5;  128,  par.  5. 

IV.  On  page  28,  paragraph,  5.  Unlawful  meetings  of  negroes  for  reli- 
gious worship.  The  Code  expresses  it,  "  before  the  rising  of  the  sun."  The 
Majority  add  the  words  of  the  Statute,  "or  after  the  going  down  thereof" — 
unnecessary,  and  therefore  properly  omitted.  Before  the  rising  of  the  sun 
embraces  all  the  time  after  sun-set. 

On  page  60,  paragraph  2.  "  The  party"  used  in  the  Code,  struck  out, 
and  the  words  of  the  Statute,  "any  such  public  officer,"  restored.  They 
mean  the  same  thing,  and  the  former  is  in  better  style. 

So,  on  page  63,  paragraph  2 — "Shall  be,"  substituted  for  "is,"  in  the 
Code,  which  properly  uses  the  latter  word,  as  it  is  deciariag  what  is  the  law. 
2 


19    * 

And  on  page  88,  paragraph  8,  the  words  "on  or"  unnecessarily  interpolated. 

On  page  '*^9,  paragraphs  2  and 3.     The  Majority  change  the  order  of  two, 
paragraphs.     The  Code  follows  the  arrangement  of  the  existing  laws,  which  is 
plainly  the  proper  one. 

On  page  lOi,  paragraph  8.  The  Majority  change  "begins"  into  "shall 
begin,"  when  the  Code  is  declaring  what  is  the  law.  They  also  strike  out 
"and  the  era  dates  from  the  first  (^ay  of  October,  1788,"  and  injscrt  "  in 
every  year,"  which  is  inappropriate  for  the  same  reason. 

On  page  103,  paragraph  3,  the  Majority  strike  out  the  word  "  incompe- 
tency," which  is  entirely  appropriate,  and  substitute  for  it  "  non-compliance." 
And  in  paragraph  6,  on  same  page,  they  strike  out  assets  "in  his  hands," 
and  insert  "which  carae  into  his  hands,"  which  means 'the  same  thing. 
And  they  add  "if  sufficient,"  which  is  superogatory,  as  that  is  the  very 
import  of  the  term  asset — asaez,  enough. 

Other  amendments  belonging  to  this  class  occur  at  pages  26,  paragraph  8  ; 
28,  par.  5;  34,  par.  8j  102,  par.  4;  104,  par.  1;  127,  par.  4  and  5;  128, 
par.  2,  3,  4  and  7  ;  129,  par.  2.  ' 

V.  On  page  26,  paragraph  1.  The  Majority  substitute  "  are  punishable 
with  death"  for  "  amount  to  felony  without  henejit  of  clergy^  A  change 
became  necessary  when  the  Commissioner  decided  to  recommend  the  abolish- 
ment of  hp.ne.fil  of  clergy,  and  he  noted  it  in  liis  copy  of  the  "work  in  the 
word^  "that  amount  to  capital  felonies,"  (a  better  phrase  than  that  used  by 
the  majority)  but  omitted  it  in  the  Addenda  &  Corrigenda. 

On  page  64,  paragraph  5.  The  amendment  made  by  the  Majority  in 
relation  to  the  salaa'ies  of  '•'  public  officers  on  the  civil  list,"  is  in  the  Code  at 
its  proper  place,  page  228.  See  Addenda  &  Corrigenda,  page  745.  The 
Faculty  of  the  College  do  not  fall  under  that  designation.' 

On  pat,e  67,  paragraph  1.  As  to  census  for  apportioning  Representatives 
in  the  Legislature.  The  Code  had  it  "  an  enumeration,  &c.,  shall  be  made 
in  the  year  18fc>9,  and  in  the  course  of  every  t,enth  year,  &c.,"  following  the 
language  of  the  old  Copstitution.  The  Constitution  was  altered  in  1861, 
after  this  part  of  the  6ode  was  printed,  and  the  Commissioner  noted  the 
following  amendment  in  his  copy,  but  omitted  it  in  the  Addenda  &  Coj'ri- 
genda,  viz  :  "  toaa  made  in  the  year  1859,  and  shall  be  made  in  the  course, 
'&c."  This  is  exactly  correct.  The  Majority  amend  the  clause  so  that  it 
shall  read,  "an  enumeration,  &c.,  shall  be  made  in  the  year  1869,  and  in 
the  course,  &c.". 

On  page  70,  paragraph  4.  Election  day  changed  since  this  part  of  the 
Code  was  printed.  The  Majority  note  the  change,  and  it  is  also  noted  in 
the  Commissioner's  copy. 

On  page  71.  -rn6  Majority  insert,  after  paragraph  2,  a  paragraph  which 
is  already  in  the  Book  at  page  67,  paragraph  b. 


11 

On  page  88,  paragraph  6.  The  Majority  insert  an  enactment  in  relation 
to  Reports  of  Railroad  Companies,  which  was'  passed  after  this  part  of  the 
Code  was  printed,  but  is  noted  in  the  Addenda  &  Corrigenda^  to  be  printed 
in  its  proper  place. 

In  like  mariner,  on  page  94,  paragraph  5,  the  Majority  insert  a  provision 
in  relation  to  annuitants,  which  is  in  the  Book,  at  page  96,  paragraph- 4. 

Also  on  page  125,  paragraph  2.  The  words,  "  in  case  of  felonies,"  which 
are  in  the  Book,  for  the  same  object,  at  page  126,  paragraph  3. 

VI.  In  this  class  all,  except  those  rendered  necessary  by  recent  legisla- 
tion, are  of  comparatively  small  importance. 

On  page  25,  paragraph  2.  Tax  returns  of  free  persons  of  color.  After 
"  free  negroes,"  the  words  of  the  Statute  "  mulattoes  and  mestizoes,"  omit- 
ted in  the  Code,  arc  restored.  The  omission  was  probably  caused  by  the 
opinion  that  such  persons  are  embraced  in  the  term  "  free  negroes."  And, 
moreover,  at  page  33,  the  Code  states  that  the  terms  "  free  negroes,"  and 
"  persons  of  color,"  are  to  be  deemed  convertible.  To  prevent  all  uncer- 
tainty, however,  it  is  perhaps  better  .to  restore  the  words. 

On  page  43,  paragraph  1.  Exception  to  the  requirement  of  vhite  men 
on  plantations,  extended  to  plantations  whose  owners  reside  in  the  vicinity, 
and  regularly  perform  patrol  duty,  according  to  the  Act  of  1842,  omitted  in 
the  Code.  « 

On  page  55,  paragraph  11.  Ofl^ers  appointed  by  the  Grovernor.  "  Reg- 
istrar of  Births,  &c.,"  struck  out.  *  The  office  abolished  .since  the  Book  was 
printed.  The  same  remark  applies  to  the  ameuduents  at  pages  83,  para- 
graph 9,  and  90,  paragraph  3 ;  and  on  page  98,  paragraph  8,  as  to  Licenses 
to  Itinerant  Tradesmen.. 

On  page  57,  paragraph  2.  Date  of  Official  Bonds.  Independence  of  the 
United  States  \)f  America,  changed  to  that  of  this  State.  The  change  ren- 
dered proper  by  the  secession  of  the  State  from  the  United  States,  since  the 
printing  of  the  Book. 

And  on  the  same  page,  paragraph  5,  the  Code  omits  to  state  that  the  form 
of  pro6a(e  %hall  be  endorsed  on  blanks  for  official  bonds.  The  omission  is 
supplied.  ^ 

On  page  58,  paragraph  5.  The  Code  requires  that  a  surety  shall  be  worth 
the  amount  of  the  bond.  The  words  of  the  Statute,  the  "amount  for  which 
be  offers  ^imself,"  are  restored. 

On  page  67,  paragraph  3,  Amended  to  correspond  with  th^ Constitution 
of  1861,  established  since  this  part  of  the  Book  was  printed.  And  the  same 
remark  applies  to  the  amendment  on  page  71,  after  paragraph  6. 

On  page  73,  paragraph  6.  Election  of  certain  State  officers.  "Commis- 
sioner of  Locations"  struck  out..  Rendered  proper  by  subsequent  recom- 
mendation of  the  Commissioner  to  abolish  that  office. 


On  page  80,  paragraph  9.  Powers  and  duties  of  the  Governor.  He  ia 
President  of  the  Board  of  CouiiuissioDers  of  Jthe  Deaf  and  Dumb,  and  the 
Blind. .    Omitted  here,  though  it  is  stated  at  page  238,  paragraph  1. 

On  page  104,  paragraph  3.      Marginal  title,  "capitation  tax,"  inserted. 

On  same  page,  paragraph  3.  "  At  the  present  session  or  hereafter,"  un- 
necessary, and  properly  struck  out. 

On  page  129,  paragraph  3.  The  form  of*  bond  on  appeal  from  judgment 
of  Justi€e"s  Court,  omitted  in  Code.     Omission  supplied. 

On  the  same  page,  paragraph  6.  Jurisdiction  in  cases  of  trover  and  de- 
tinue given  to  the  Board  of  Magistrates  within  the  Parishes  of  St.  Philip's 
and  St.  Michael's,  to  the  extent  of  twenty  dollars,  "  between  the  inhalilan/s  of 
the  said. Pa  fishes."  The  words  in  ?7a//cs  omitted  in  the  Code,  but  the  opin- 
ion that  they  are  implied,  is  probably  correct. 

This  Report  reaches  only  to  the  latter  part  of  the  Commissioner's  first 
volume.  It  was  the  design  of  the  undersigned  that  it  should  contain  an  ex- 
amination and  classification  of  all  the  "amendments  and  alterations"  made 
by  the  Majority.  But  the  time,  since  the  last  adjournment  ot  the  Commis- 
sion, has  been  insufficient  for  the  full  accomplishment  of  their  intention.  It 
is  believed  that  the  remaining  "amendments  and  alterations"  are  of  the  same 
general  character  as  those  herein  not'ced,  and  that  enough  has  been  brought 
to  the  view  of  the  Legislature  to  show  that  the  Majority  have  not  been  happy 
in  appfohending  the  proper  character  imd  style  of  a  Code,  or  the  spirit  of 
the  distinguished  author,  whose  work  they  have  scrutinized  with  commenda- 
ble industry. 

If  the  Legislature  think  fit  to  postpone  action  on  the  subject,  the  under- 
signed will  avail  themselves  of  the  opportunity  to  submit  a  Supplemental 
Report.  Otherwise,  they  respectfully  recommend  the  adoption  of  the  follow- 
ing resolution.:  '  . 

Resolved,  That  the  Code  of  the  Statute  Law  of  the  State,  prepared  by  the 
late  Mr.  Petigru,  a^d  the  Reports  of  the  Majority  and  Minority  of  the  Com- 
mission on  the  same,  be  referred  to  an  Editor,  to  be  appointed  by  the  Legisla- 
ture, whose  duty  it  shall  be  to  supply  the  omissions  mentioned  in  this  Report 
and  others  of  a  like  character  in  the  remainder  of  the  work,  to  incorporate  the 
additions  and  corrections  in  the  body  of  the  same,  to  number  the  sections  or 
paragraphs  fpr  the  purpose  of  reference,  and  prepare  a  general  index  of  the 
whole. 

Respectfully  submitted, 

.    HENRY  D.  LESESNE. 
'    WILLIAM  WHALEY. 
Columbia,  November  28,  1864. 


18 

At  several  preliminary  meetings  of  the  Commission,  I  expressed  my  ap- 
proval of  the  plan  o'^  the  Code,  and  its  execution.  '  I  now  concur  generally 
in  this  Report,  and  recommend  the  adoption  of  the  above  resolution. 

,  B.  F.  PERRY. 

Columbia,  December  2,  1864. 

•Note. — During  'the  examination-  of  the  Code,  each  member  noted  the 
changes  that  were  determined  on  in  his  copy  of  the  Book.  The  writer  was 
hindered  by  illness  from  attending  two  meetings  of  the  Commission,  and  the 
foregoing  Report  was  prepared  from  the  onfy  copy  of  the  Book  which  was 
accessible  to  him.  It  is  now  discovered  that  there  are  some  discrepancies 
among  the  several  oopies.  For  example,  the  Chairman's  does  not  contain 
the  change  on  piige  76,  paragraph  16,  above  noticed,  which  occurs  in 
two.  of  the  other  copies. 

The  change  on  page  31,  paragraph  4,  noticed  above  under  class  I,  belongs 
properly  to  class  II. 

Mr.  Perry  having  signed  this  rcpt^rt,  as  above,  each  of  th*e  reports  is  nojw 
concurred  in  by  three  members — one  by  Messrs.  Moses,  Arthiirand  Williams 
— ;the  other,  by  Messrs.  Lcsesne,  Whaley  and  I'erry.  The  remaiiiiug  mem- 
ber of  the  Colli  mis-ion,  Mr.  Dawkins,  is  in  ftivor  of  this  report,  or  of  the 
resolution  appended  thereto,  but  declines  signing  it  for  reasons  which  he  will 
explain  in  his  place. 

Columbia,  December  2,  1864. 

JSoTE  — One  of  the  two  members  who  noted  the  change  on  page  76,  par. 
6,  explains  that  it  was  intimated  to  denote   his  individual  recommendation,    4^/1 
not  the  decision  of  the  majority. 

Columbia,  December  3,  18d4.     / 


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